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Attorney Grievance Commission f Maryland v. White

Court of Appeals of Maryland

May 23, 2016

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
ERICA S. WHITE

         Circuit Court for Baltimore City Case No. 24-C-15-000156

          Argued: February 9, 2016

          Barbera, C.J. [*] Battaglia, Greene, Adkins, McDonald, Watts, Hotten, JJ.

          OPINION

          HOTTEN, J.

         This attorney discipline action involves a lawyer who, while representing her clients in separate legal matters, failed to comply with remedial conditions as required under consecutive Conditional Diversion Agreements ("CDA")[1] for prior misconduct concerning her trust account; failed to secure safeguards during an illness to ensure a timely appeal for her client or otherwise protect her client's interests in conformance with the Rules of Professional Conduct; and mismanaged her attorney trust account by repeatedly accumulating negative balances, depositing unearned fees, and maintaining improper record-keeping practices.

         Respondent, Erica S. White, a member of the Bar of Maryland, represented Keith Fleming ("Mr. Fleming") in a divorce and custody matter ("Fleming matter") and Karma Sewell-Carpenter ("Ms. Sewell-Carpenter"), in a landlord-tenant dispute ("Sewell matter"). Between March 2012 and November 2013, Respondent was under a CDA with Bar Counsel for prior misconduct involving mismanagement of her attorney trust account. Respondent's CDA was later amended ("Amended CDA"), then subsequently revoked in April 2014 due to Respondent's non-compliance with the terms of the CDA. (collectively, "CDA matter").

         On December 30, 2014, Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action ("Petition") against Respondent, based upon her representation of Mr. Fleming and Ms. Sewell-Carpenter, non-compliance with the CDA and Amended CDA, and the mishandling of her trust account throughout this period ("Trust Account matter"). Bar Counsel alleged that Respondent violated the following Maryland Lawyers' Rules of Professional Conduct ("MLRPC"): Rule 1.1 (Competence), Rule 1.3 (Diligence), Rule 1.4(a) and (b) (Communication), Rule 1.15(a) and (d) (Safekeeping Property); 1.16(d) (Declining or Terminating Representation); 8.1(a) and (b) (Bar Admission and Disciplinary Matters); and Rule 8.4(a), (c), and (d) (Misconduct).

         Bar Counsel also alleged that Respondent violated Maryland Rules 16-606.1 (Attorney Trust Account Record-Keeping), 16-607 (Commingling of Funds), 16-609 (Prohibited Transactions), and Md. Code (1989, 2010 Repl. Vol) § 10-306 of the Business Occupations & Professions Article ("Bus. Occ. & Prof.") (Misuse of Trust Money).

         By Order dated January 9, 2015, this Court transmitted the matter to the Circuit Court for Baltimore City and designated the Honorable Edward R.K. Hargadon ("hearing judge") to render findings of fact and conclusions of law. On April 17, 2015, both parties participated in a scheduling conference call with the hearing judge, setting a hearing for June 24, 2015 at 9:30 a.m. On or about June 22, Respondent informed the court that she was unable to attend the hearing due to her representation of a client in a murder trial that day.

         On July 14, 2015, a hearing was conducted. Present were Bar Counsel and Respondent. Ms. Sewell-Carpenter, Edwin Karr ("Mr. Karr"), Investigator for the Attorney Grievance Commission, Anne Deady, Esquire ("Ms. Deady"), the law practice monitor assigned to Respondent under her Amended CDA, and Laura Burrows, an attorney who worked with Respondent on an unrelated matter, testified on behalf of Bar Counsel. Respondent represented herself and testified. On September 4, 2015, the hearing judge filed with this Court findings of fact and conclusions of law, determining that: (1) relative to the Fleming matter and Respondent's CDA and Amended CDA violations, she violated MLRPC 1.1, 1.4, 1.15, [2] 8.4(a) and (d), and Md. Rule 16.606.1; (2) regarding Respondent's false statements and misrepresentations to Bar Counsel, she violated MLRPC 8.1(a) and (b), 8.4 (a), (c), and (d); (3) relative to the Sewell matter, she violated MLRPC 1.1, 1.3, 1.4, 1.16(d), 8.4(d); and (4) regarding the Trust Account matter, she violated MLRPC 1.1, 1.15(a), 8.4(d), Md. Rules 16-606.1(a)(1)-(3), 16-607, 16-609(b) and (c), and Bus. Occ. & Prof. § 10-306.

         On September 22, 2015, Bar Counsel filed its recommendation for sanctions, requesting indefinite suspension with the right to apply for readmission after six months, and took no exceptions to the hearing judge's findings of fact or conclusions of law. On September 23, 2015, Respondent filed general exceptions to the hearing judge's findings and conclusions, which she subsequently amended on September 30, 2015 and February 9, 2016.[3] On February 9, 2016, we heard oral argument. Respondent conceded that she engaged in professional misconduct relative to the alleged charges, but attributed her actions to illness, recuperation after surgery, and difficulties experienced as caretaker of her mother until her death, which collectively impacted her practice during those periods. For the reasons that follow, we conclude that Respondent violated MLRPC 1.1, 1.3, 1.4(a) and (b), 1.15(a), 1.16(d), 8.1(a) and (b), 8.4(a), (c), and (d), Md. Rules 16.606.1(a)(1)-(3), 16-607, 16-609(b) and (c), and Bus. Occ. & Prof. § 10-306, and will indefinitely suspend her from the practice of law in this State with the right to apply for readmission after six months.

         BACKGROUND

         The hearing judge rendered the following findings of fact, which we summarize:

         A. Respondent's CDA, Subsequent Amended CDA, and the Fleming Matter

         Respondent was admitted to the Bar of Maryland on November 3, 2007, and currently maintains a law office in Baltimore, Maryland. On March 21, 2012, Respondent entered into a one-year CDA with Bar Counsel.

         Pursuant to Md. Rule 16-736(c)(2)(A), [4] Respondent acknowledged that she had engaged in professional misconduct relative to her representation of Mr. Fleming.[5] Under the CDA, Respondent was required to review a Continuing Legal Education DVD on trust account management. However, two months prior to completing the CDA, Respondent failed to fulfill her obligations due to a failure to timely deposit funds into her trust account and to provide client records to Bar Counsel. As a result, on November 25, 2013, Bar Counsel amended Respondent's CDA and assigned Ms. Deady as her law practice monitor. The Amended CDA contained the following conditions:

Respondent will provide [Ms. Deady] with a copy of her general ledger, individual client ledgers, monthly trust account reconciliation, trust account statement, and corresponding cancelled checks on a monthly basis for her monitor to submit to Bar Counsel for the remainder of the Amended CDA.
Respondent will attend a meeting with Certified Public Accountant/Commission Investigator Charles Miller [("Mr. Miller")] to review Respondent's financial records and to discuss Respondent's trust account questions. Respondent will bring a copy of her general ledger, individual client ledgers, monthly reconciliation and monthly trust account statements from the previous three months with her to the meeting for Mr. Miller to review. Respondent will set a meeting date with Mr. Miller by no later than seven [ ] days after the new effective date of the Amended CDA. The meeting date shall occur within twenty [ ] days of the effective date of the Amended CDA.
[Ms. Deady] shall be required to attend a formal hearing/court proceeding with Respondent within two [ ] months from the new effective date of the Amended CDA and to complete a client observation form in connection with the hearing/proceeding.
[Ms. Deady] shall continue to provide reports to Bar Counsel on a monthly basis and submit each report on the 30th day of the month. In addition, Respondent shall meet with [Ms. Deady] on a monthly basis on the twentieth [ ] day of each month. During the meeting, Respondent shall discuss her Amended CDA in detail, provide any needed trust account records and/or billing documentation to the monitor, and to submit her written report of her biggest challenges and/or goals/accomplishments for the month.
Respondent's Amended CDA shall remain in effect until July 31, 2014.

         i. Respondent's Interactions with Ms. Deady

         Respondent admitted that during November 2013 through February 2014, she failed to provide the information to Ms. Deady and Mr. Miller regarding her general ledger, individual client ledgers, monthly reconciliation, trust account bank statement, and corresponding cancelled checks on a monthly basis. On November 8, 2013, Respondent met with Ms. Deady in her law office, to review her files. Respondent promised to submit copies of her client ledgers, trust account reconciliation statements, and trust account bank statements per CDA requirements by November 20, 2013. Due to Respondent's other commitments, [6] Ms. Deady did not timely receive the proper documents for her November 2013 report to Bar Counsel.

         Ms. Deady submitted her second monthly report to Bar Counsel on January 10, 2014, which reflected that she contacted Respondent on January 6, 2014 for the required documents. However, Respondent advised that she was unable to comply due to scheduled surgery that same day. Although Respondent promised to provide the documentation after her recuperation, she did not.

         Ms. Deady left a voicemail for Respondent on January 30, 2014. In Ms. Deady's third monthly report to Bar Counsel, she advised that Respondent had not contacted her since January 6, 2014. Bar Counsel granted Respondent an eight-day extension to submit her documentation to Ms. Deady. Ms. Deady's fourth monthly report to Bar Counsel on February 28, 2014, reflected that she contacted Respondent on February 25, 2014 to schedule an appointment on February 27, 2014, and noted Respondent's failure to provide any documents or meet with her since November 2013. However, Respondent was unable to meet with Ms. Deady on February 27, citing a need to prepare for a motion and complications from her surgery.

         ii. Respondent's Interactions with Attorney Grievance Commission Investigator, Mr. Karr

         In February 2014, Mr. Karr contacted Respondent regarding the impending revocation of her Amended CDA. Mr. Karr conducted an interview of Ms. Sewell-Carpenter on March 6, 2014, but received no response from Respondent after leaving voice messages on March 7 and 10, 2014. On March 11, 2014, Mr. Karr contacted Respondent and scheduled an interview for March 25, 2014, at 11:00 a.m.

         During the hearing, Mr. Karr testified that Respondent attempted to cancel the interview, citing an impending trial and inquired whether he could provide her with written questions in advance. Mr. Karr directed her to Assistant Bar Counsel JaCina Stanton ("Ms. Stanton"). Mr. Karr and Ms. Stanton subsequently cancelled the interview and agreed that Respondent could provide a statement under oath.

         iii. Respondent's Failure to Protect Client's Interests

         In light of Respondent's upcoming surgery and anticipated recuperation period, Ms. Stanton requested information from Respondent on November 26, 2013 regarding the status of her cases scheduled for January 2014. In a reply e-mail sent on December 5, 2013, Respondent stated:

I have already discussed the matter with most of my clients and am in the process of discussing it with the rest. I have already addressed the issue of court dates as I have explained to the [c]ourt what my situation is and requested court dates in accordance with my expected return to work. I also advised the [c]ourt that I will notify them if anything changes or I need more time. . . .

         On January 24, 2014, Ms. Stanton requested that Respondent provide further information regarding three separate cases that were scheduled for jury trial.[7] Although Respondent indicated that she postponed the cases, they nonetheless remained on the docket for trial. Contrary to Respondent's December 5 e-mail that she was communicating with her clients about their cases, she failed to advise Ms. Sewell-Carpenter about her pending hearing scheduled for January 24, 2014. On March 17, 2014, Respondent informed Bar Counsel that she contacted her clients and the court involving her cases, without providing an explanation regarding the trial date in the Sewell matter.[8]

         B. Sewell Matter

         On December 3, 2005, Ms. Sewell-Carpenter signed a commercial lease agreement with ELT Corporation to rent space for a dance studio she operated named Karma's Dance Factory. Rachel Oziel ("Ms. Oziel") and her husband, Madgi Oziel owned ELT. On or about September 4, 2012, Ms. Oziel filed suit against Ms. Sewell-Carpenter on her own behalf, in the amount of $5, 997 in the District Court for Baltimore County for failure to pay rent. (Oziel v. Sewell, Case No. 080400197772012). On November 27, 2012, the District Court entered judgment against Ms. Sewell-Carpenter in the amount of $6, 907.

         Twice during November or December 2012, Respondent discussed possible representation with Ms. Sewell-Carpenter. Ms. Sewell-Carpenter advised Respondent of the November 27 judgment, but Respondent never recommended that Ms. Sewell-Carpenter file an appeal or a motion to revise judgment within thirty days. During the disciplinary hearing, Respondent indicated that she thought she had ninety days to seek an amended or revised judgment.

         On February 23, 2013, Ms. Sewell-Carpenter formally retained Respondent after submitting two credit card payments totaling $1, 500. That same day, Respondent sent Ms. Sewell-Carpenter an e-mail, outlining the legal services that she would provide, but did not address the likelihood of success. Ms. Sewell-Carpenter never responded to the February 23 e-mail[9] or executed a retainer agreement.

         On February 26, 2013, Respondent filed a "Motion to Set Aside Judgment" ("Motion to Set Aside"), ninety-one days after the judgment was entered against Ms. Sewell-Carpenter, based on fraud, mistake or irregularity. The motion was denied on March 13, 2013. Respondent also filed a "Motion for Reconsideration" of the denial of the Motion to Set Aside. During the hearing on June 11, 2013, Respondent neglected to bring Ms. Sewell-Carpenter's file. The court subsequently denied the motion. Throughout this period, Respondent never provided Ms. Sewell-Carpenter with copies of the motions filed on her behalf. Although Respondent advised Ms. Sewell-Carpenter that she would send a copy of her file, she did not do so until December 2013, two months after Ms. Sewell-Carpenter filed a complaint with the Attorney Grievance Commission against Respondent on October 8, 2013.

         On November 27, 2013, Ms. Sewell-Carpenter filed a Motion to Vacate Judgment pro se. A hearing on the matter was scheduled for January 24, 2014. Ms. Sewell-Carpenter was officially notified of a motions hearing and notice was also sent to Respondent, who remained counsel of record. Respondent claimed that she was absent from her law office throughout the month of January due to illness, neglected to check her mail, and never implemented forwarding procedures during her period of recuperation.

         Although Respondent's representation of Ms. Sewell-Carpenter ended in June 2013, she failed to file a motion to strike appearance with the court. Ms. Sewell-Carpenter's motion was subsequently dismissed for her failure to appear for the hearing on January 24. As a result, her wages were garnished in the amount of $6, 907 to satisfy the judgment. On February 11, 2014, Ms. Sewell-Carpenter's subsequent motion to reset a hearing date was denied. Respondent did not file a motion to withdraw her appearance as counsel until March 11, 2014.

         C. Trust Account Matter

         Bar Counsel subpoenaed Respondent's trust account bank statements from December 2012 to March 2014. During the hearing, Respondent conceded that she had not maintained accurate records or retained checks for her trust account during this period. Between May and July 2013, attorney's fees for two unspecified clients were applied to negative balances. Respondent was unable to identify the particular clients whose funds were affected by the negative balances.

         In July 2013, Respondent made a cash withdrawal and subsequently wrote a check payable in October 2013 from her trust account without a memo, both in the amount of $50.00. Respondent also wrote a check payable to "Cash" in the amount of $420, with a memo indicating "USCIS Fee Wolf Case." During the hearing, Respondent conceded that this transaction was violative of trust account rules.

         Beginning October 31, 2013, Respondent's trust account had a negative balance of $11.20. The trust account remained in that status for the next five months until March 31, 2014, when her ending trust account balance was $36.00. Respondent conceded that during the period of her CDA or Amended CDA, she neglected to note clients' names on the majority of her checks and deposit slips.

         STANDARD OF REVIEW

         "This Court has original and complete jurisdiction over attorney disciplinary proceedings." Attorney Grievance Comm'n v. Barton, 442 Md. 91, 119, 110 A.3d 668, 684 (2015) (citations omitted). "Bar counsel ha[s] the burden of proving [the] allegations in the disciplinary petition by clear and convincing evidence." Attorney Grievance Comm'n v. Edib, 415 Md. 696, 706, 4 A.3d 957, 964 (2010). See also Md. Rule 16-757(b) ("The [Commission] has the burden of proving the averments of the petition by clear and convincing evidence.").

         We conduct an independent review of the record and accept the hearing judge's findings of fact unless they are clearly erroneous. See Barton, 442 Md. at 119, 110 A.3d at 684 (citation omitted). Deference is accorded to the hearing judge's findings, who is in the best position, as the fact-finder, to assess the credibility of a witness. See Edib, 415 Md. at 706-07, 4 A.3d at 964. See also Md. Rule 16-759(b)(2)(B) ("The Court [of Appeals] shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses."). "Findings of fact to which neither party takes exception may be treated by us as conclusively established." Edib, 415 Md. at 707, 4 A.3d at 964. See also Md. Rule 16-759(b)(2)(A).

         However, if exceptions are filed, "the Court of Appeals shall determine whether the findings of fact have been proven by the requisite standard of proof" outlined in Md. Rule 16-757 (b).[10] See Md. Rule 16-759(b)(2)(B). We review de novo, the hearing judge's conclusions of law. See Edib, 415 Md. at 707, 4 A.3d at 964. See also Md. Rule 16-759(b)(1) ("The Court of Appeals shall review [de novo] the [hearing] judge's conclusions of law.").

         DISCUSSION

         A. Findings of Fact

         Bar Counsel does not except to any of the hearing judge's findings of fact. However, Respondent excepts to the findings relative to her interactions with Commission Investigator, Mr. Karr. Respondent contends that her exhibits evidenced a series of communications with Bar Counsel, reflecting that she asked whether Mr. Karr could provide questions in advance to ensure that the interview "was productive and went smoothly." Respondent asserts that she did not refuse to meet with Mr. Karr, although the hearing judge adopted the position that Bar Counsel and Mr. Karr decided that Respondent would provide a statement under oath, in lieu of her meeting with Mr. Karr.

         We shall overrule Respondent's exceptions. Although the evidence does not reflect that Respondent refused to meet with Mr. Karr, [11] it does demonstrate that she did request questions "ahead of time, " which prompted the alternate resolution agreed upon by Ms. Stanton and Mr. Karr. In response to her request, Ms. Stanton advised, in part:

You advised Commission Investigator, [Mr.] Karr that you would not sit for an interview unless you were provided with written questions in advance. The Maryland Rules do not require us to provide respondents with written questions prior to interviews.
Pursuant to [Md.] Rule 16-732, we are requesting that you attend a Statement under oath for this matter. . . .

         Thus, the hearing judge's findings that 1) Respondent "inquired whether Mr. Karr would provide her with written questions prior to being interviewed[;]" 2) Mr. Karr subsequently advised that this was not standard protocol; and 3) Mr. Karr and Ms. Stanton agreed that Respondent would provide a statement under oath in lieu of an interview, were consistent with the evidence.

         Respondent excepts to the hearing judge's findings regarding the extent of her communications with clients, as reflected in her March 17, 2014 correspondence to Bar Counsel. She contends that those client communications began on November 26, 2013, and during that time, the averments were accurate, with the exception of Ms. Sewell-Carpenter. Although Respondent concedes that she neglected the Sewell matter, she nonetheless avers that she did not have a duty to Ms. Sewell-Carpenter because she "acted on her own" without Respondent's knowledge when she filed motions pro se.

         We overrule Respondent's exceptions. As an initial matter, the fact that Ms. Sewell-Carpenter filed motions pro se, is of no consequence to the hearing judge's findings that she failed to advise Ms. Sewell-Carpenter about the January 2014 hearing-after receiving notification from the court. Moreover, the December 5, 2013 e-mail to Bar Counsel, Respondent stated:

I have already discussed the matter with most of my clients and am in the process of discussing it with the rest. . . .

         Although Respondent references the March 17 correspondence to Bar Counsel, it was Respondent's December 5 e-mail that the hearing judge relied upon in determining that Respondent misrepresented the client communications regarding their cases. Respondent neglected to correct any prior misrepresentations in the March 17 correspondence. Additionally, Respondent conceded that she neglected the Sewell matter, although she remained counsel of record until she withdrew her representation in March 2014.

         Respondent excepts to the hearing judge's findings regarding initial conversations with Ms. Sewell-Carpenter, where the hearing judge stated, in part, "Ms. Sewell[-Carpenter] advised Respondent of the judgment, but Respondent never informed Ms. Sewell[-Carpenter] that she had to file an appeal, or a motion to revise judgment, within thirty days of the judgment." Respondent contends that if Mr. Karr's statements in his interim report are believed, his interview with Ms. Sewell-Carpenter in March of 2014 reflects that Respondent was not hired until after her trial and entry of judgment on November 27, 2012, and that her $1, 500 fee payment was not made until February 23, 2013. Respondent further ...


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